SAC2B

• mediation is a cooperative method of resolving disputes, and can be initiated by the parties, ordered by the courts or requested by the courts. mediators role is to be independent and facilitate communication, to allow parties to reach their own decision
• key points for mediation

  • parties must enter into decision voluntarily
  • resolution is non-binding (unless a terms of settlement is signed)
  • most commonly used at VCAT
  • resolution can be unique and tailored to both parties (win-win situation)
  • mediator cannot offer suggestions to either party
• conciliation is a cooperative method of dispute resolution, whereby the conciliator listens to the facts, makes suggestions and assists parties to reach a mutually acceptable agreement. is able to make suggestions due to specialist knowledge in area of dispute
• key points of conciliation

  • conciliator has more influence over outcome, as more directive than mediator
  • has specialist knowledge in area of dispute
  • most commonly used with CAV
  • apart from above, identical to mediation
• times when mediation/conciliation should NOT be used

  • one party wants it on public record
  • if urgent court intervention is needed (eg. injunction)
  • gross imbalance of power or history of threatening behaviour
  • timing (too early=facts not established, too late=expensive & unnecessary process)
• when mediation/conciliation should be used

  • maintenance/preservation of ongoing relationship
  • parties are willing to compromise and follow through on agreements
  • confidentiality & privacy preferred
• mediation/conciliation are appropriate when

  • parties will have ongoing relationship after resolution of dispute
  • parties prepared to compromise
  • parties seek privacy and confidentiality in resolving dispute
  • flexibility in solution required
  • parties wish to avoid costs associated with hearing or trial
• mediation/conciliation inappropriate when

  • parties are too emotional about the dispute
  • one/both parties are not willing to work together to find a solution
  • parties do not have a history of positive interactions/no trust
  • gross imbalance of power between parties
  • dispute involves complex/technical legal matters (eg. precedent)
• strengths of mediation/conciliation

  • less formal, less intimidating, higher chance of win-win solution
  • cheaper, as avoids pre-trial processes & no need for legal representation
  • quicker, fewer rules (saves courts time)
  • parties have more flexibility with processes and solution
  • facilitates maintenance of ongoing relationship
  • independent third party to facilitate communication
  • safe & supportive environment (less confronting than courts)
  • private and confidential
• weaknesses of mediation/conciliation

  • one party may compromise too much, while the other may argue more effectively (imbalance of justice)
  • relies on participation and attendance with a willingness to compromise, intimidation possible
  • matter may still not be resolved at the end, so still needs hearing/trial
  • decision not enforceable (unless terms of settlement signed)
  • no open justice as occurs behind closed doors (problematic when community has interest in outcome)
• arbitration is a method of resolving disputes between parties whereby a third party (an arbitrator) decides the dispute. arbitrator hears both sides and then awards a legally binding decision (arbitral award)
• key points of arbitration

  • less formal and cheapER than a court
  • parties have more control over proceedings than in court
  • arbitrator is not bound by rules of evidence and procedure
  • ensures parties are treated equally and both have a chance to present case
  • used in Magistrate court for claims under $10,000 & private disputes (also contract law)
• arbitration appropriate when

  • parties have agreed to go to arbitration
  • claim of less than $10,000 issued in Mag Crt
  • parties want binding and enforceable award made by third party
  • parties want evidence presented to objective third party
  • parties want confidentiality and less formality than courtroom
• arbitration is NOT appropriate when

  • parties wish to retain control over outcome
  • parties want publicity with the case
  • parties want more strict and formal rules of evidence and procedure
• strengths of arbitration

  • decision is binding and fully enforceable by courts
  • normally private and confidential, avoids publicity of a court trial
  • parties have input in how arbitration is conducted
  • arbitrator has expertise in relevant subject matter
  • possibility of being quicker and cheaper than courts
• weaknesses of arbitration

  • more formal than mediation or conciliation so this can cause stress, add time and costs
  • parties have no control over outcome which is made by arbitrator (no win-win)
  • can be slow and expensive, depending on process selected (eg. exchange of evidence)
  • not always available as an option (ie. over $10,000 in Mag Crt)
  • limited rights of appeal
• class actions are where a group of people who all have the same or similar claims against the same party, join together to have their claim heard
• requirements of a class action

  • seven or more people have claims against the same party
  • those claims relate to the same, similar or related circumstances
  • the same issues need to be decided (eg. did defendant owe a duty of care?)
• types of class action

  • shareholder CA: shareholders of a company make a claim about being misrepresented by the company with which they hold shares
  • product liability CA: consumers who purchase a good or service have suffered similar harm/loss
  • employee CA against employer: eg. employees are underpaid or poor working conditions
  • natural disaster CA: group members suffer harm/loss as a result of a natural disaster
• costs in class actions

  • if it fails, lead plaintiff is responsible for any adverse costs
  • some law firms/litigation funders have a "no win, no fee" policy
  • litigation funders will take 20-40% of the award, and will only take on economical claims
  • if successful, group members share the costs (taken out of award)
• class actions are appropriate when

  • 7+ people that suffered loss from the same/similar incidents caused by the same defendant
  • there is a litigation funder/lead plaintiff willing to fund the claim
  • lead plaintiff is willing to take on the time, stress and burden of the matter
• class actions are inappropriate when

  • fewer than 7 group members
  • claim relates to different facts or defendants
  • very small claims (not economical, cost of action may exceed claim itself)
  • one plaintiff suffers more loss than the others, they may wish to file a separate claim to receive their own award
• Consumer Affairs Victoria is an alternative dispute resolution body that specialises in resolving consumer disputes (including tenants and landlords). It is responsible for regulating Vic consumer law and facilitating free, non-binding resolutions
• CAV's role is to

  • advise the Vic Gov on consumer legislation
  • advise / educate Victorians about their rights & responsibilities under Vic laws (including changes)
  • enforces businesses to comply with consumer laws
  • uses conciliation processes to resolve disputes between consumers and traders, and landlords and tenants
• CAV is appropriate when

  • dispute is within their jurisdiction
  • consumer has already made attempts to resolve the issue themselves
  • complaint is serious/justifies CAV intervention
  • clear breach of jurisdiction on behalf of landlord/business
  • consumer is vulnerable or disadvantaged
  • issue is likely to be resolved
• CAV is inappropriate when

  • dispute is NOT within their jurisdiction
  • consumer has NOT attempted to resolve previously
  • complaint is trivial (does not require CAV intervention)
  • complaint has already been dealt with by another body (eg. VCAT)
  • binding order is preferable
  • the defendant is unlikely to take the matter seriously
  • matter is too big/complex for CAV
  • matter is urgent (eg. requires injunction)
• strengths of CAV

  • conciliation is free, so it is accessible to all Victorians regardless of ability to pay
  • conciliation is informal (can be conducted over the phone) to remove anxieties associated with pursuing a claim in court
  • ensures procedural fairness by allowing both sides to present their case and challenge the other's
  • disputes are assessed individually, reducing waste of time and resources on dispute unlikely to be resolved
  • conciliation ensures that parties reach a resolution themselves, so more likely to accept it if has not been forced upon them
• weaknesses of CAV

  • assistance is limited to consumer affairs, so no power to assist in any other disputes
  • has no power to compel parties to undergo conciliation
  • has no power to enforce any decisions reached by parties (unless terms of settlement is signed)
  • not all cases are accepted, due to limited criteria and prioritisation of cases
  • not appropriate for large & complex cases, including those with multiple parties and difficult legal questions
• Victorian Civil and Administrative Tribunal is a tribunal that hears and decides civil and administrative matters. Their divisions include residential tenancies, civil, human rights, planning and environment, & administrative areas. It is cheaper, less formal and more efficient THAN the courts
• the purpose of VCAT is to provide a low-cost, accessible, efficient and independent tribunal.
• VCAT is low-cost by

  • filing fees are lower than the courts
  • for some matters, there are no hearing fees
  • pre-trial procedures are not always used
  • parties can often represent themselves
• VCAT is accessible by

  • hearings are heard around Victoria
  • phone and video links are frequently used
  • hearings are usually less formal than court hearings
• VCAT constantly strives to reduce waiting times prior to hearings, to uphold its purpose of being efficient
• VCAT members are impartial and unbiased adjudicators, upholding VCAT's purpose of being independent
• VCAT can hear

  • retail and residential tenancies
  • purchases of goods and services
  • discrimination
  • guardianship
  • domestic building works
  • registration of professionals
• VCAT can NOT hear

  • class actions
  • disputes between employers and employees
  • disputes between neighbours
  • disputes about car accidents
  • any dispute arising under federal/state law, where VCAT has not been given the power to hear the matter
  • parties are members of different states (or where the Cth is a party)
• order of the VCAT process (for a binding outcome)

  mediation → compulsory conference → final hearing → orders → appeal
• compulsory conference at VCAT

  • confidential pre-hearing meetings where (in the presence of a VCAT member) parties will try to resolve their dispute
  • VCAT member may suggest potential solutions & advise what the likely outcome will be if it proceeds to a hearing
  • if no resolution is reached here, the matter will be referred to a different VCAT member for a hearing
• final hearing in VCAT

  • matters not resolved at mediation or compulsory conference are heard in a final hearing
  • parties present evidence, question witnesses and produce relevant documents
  • VCAT must conduct the hearing with as little formality as possible
  • hearings do not typically involve the strict application of rules of evidence and procedure
  • VCAT member will make a binding decision at the end of the hearing
• orders in VCAT

  • VCAT may make a very wide range of orders to resolve a dispute
  • they can include orders requiring a party to pay money, to do/refrain from doing something, declare debts are not owed, review or vary cancel contracts, dismiss claims
  • orders are binding on both parties and may be enforced with the assistance of the courts